NGRI; sentencing

Williams v. Commonwealth, 2017 WL 3751532 (Va. August 31, 2017)

The Virginia Supreme Court finds that in a case where defendant was found guilty on a charge of felony assault for one act and was found NGRI on another charge of felony assault for an act committed a month later, the trial court’s decision to order defendant to serve his prison term on his conviction before being hospitalized to treat his mental illness under the NGRI verdict did not result in a “grave injustice.” A concurring opinion noted the need for clarification in statutory guidance. A strong dissent argued that existing statutory law requires a different result.

Found in DMHL Volume 36, Issue 3

Outpatient commitment

In the Matter of the Mental Commitment of J.W.J., 895 N.W.2d 783 (Wis. 2017)

Wisconsin Supreme Court rejects argument by plaintiff subjected to repeated renewals of his outpatient commitment order that, because these repeated commitments have not resulted in his “rehabilitation” from paranoid schizophrenia the state cannot continue to forcibly treat him under the outpatient commitment statute

Found in DMHL Volume 36, Issue 2

Judicial authorization of treatment with psychotropic medication over objection

In the Matter of C.B., 392 P.3d 598 (Mont. 2017)

Montana Supreme Court upholds District Court order in involuntary commitment case in which the Court also authorizes the administration of involuntary medication when it “may be necessary.”

Found in DMHL Volume 36, Issue 2

Involuntary commitment hearings; judicial authorization of treatment; due process

In the Matter of N.L., 71 N.E.3d 476 (Mass. 2017)

Massachusetts Supreme Court rules that Massachusetts statutes give individuals in involuntary commitment hearings and in judicial authorization of treatment hearings the right to request and obtain a continuance of the hearing beyond the otherwise statutorily required time frames.

Found in DMHL Volume 36, Issue 2

Involuntary commitment hearings; right to effective representation by counsel

In re Henry B., 159 A.3d 824 (Me. 2017)

Maine Supreme Court holds that individuals subject to involuntary commitment proceedings have the right to effective representation by counsel, and may claim ineffective counsel as part of an appeal of commitment.

Found in DMHL Volume 36, Issue 2

Involuntary commitment; due process

Doe v. Florida, 217 So.3d 1020 (Fla. 2017)

The Supreme Court of Florida rules that the constitutional due process rights of individuals in involuntary commitment hearings include the right to have the judicial officer physically present for such hearings. A local court’s plan for the judicial officer to be present through videoconferencing is disapproved.

Found in DMHL Volume 36, Issue 2

Involuntary Commitment and Loss of Right to Possess Firearms

In re Vencil Appeal of Pa. State Police, 152 A.3d 235 (Pa. 2017)

Pennsylvania Supreme Court interprets Pennsylvania statute governing challenges to loss of right to possess firearms following involuntary civil commitment for mental health treatment, holding that when reviewing a physician’s decision to involuntarily commit an individual, a court must find that the physician’s decision was supported by a preponderance of the evidence available to the physician when the decision was made.

Found in DMHL Volume 36, Issue 1

Statutory Immunity for Mental Health Detention Decisions Does Not Extend to Accidents Occurring During Detention

Jacobs v. Grossmont Hosp., 133 Cal. Rptr. 2d 9 (Cal. Ct. App. 2003)

In California, an individual can be detained for 72 hours ("72-hour hold") in a designated facility for treatment and evaluation if the person is determined to be, as a result of mental disorder, a danger to self or others or gravely disabled. California has also established that individuals authorized to detain a person for a 72-hour hold cannot be held liable for exercising this authority. The California Court of Appeals, Fourth District, has held that this immunity from liability is limited to the decision to detain and does not extend to accidents that may occur in the course of the detention....

Found in DMHL Volume 23 Issue 1

Law enforcement and health care providers at hospital emergency rooms: questions on their abilities to treat individuals who do not desire their assistance

Tinius v. Carroll County Sheriff Dep't, 321 F. Supp. 2d 1064 (N.D. Iowa 2004)

Law enforcement officials are often the first to respond to emergent mental health crises and health care providers at hospital emergency rooms are often the first to treat an individual in the midst of a mental health crisis, frequently after a law enforcement official has brought the individual to the emergency room. Questions have arisen about their respective abilities to respond to and treat individuals who do not desire their assistance.  A federal court in Iowa afforded relatively wide latitude to the law enforcement officials, but less so to emergency room health care providers...

Found in DMHL Volume 24 Issue 1

A Court Can Not Impose Care and Discharge Obligations on a Hospital Beyond the Period of Time for Which the Individual Was Involuntarily Committed

Inova Health Sys. v. Grandis, 603 S.E.2d 876 (Va. 2004)

An individual was involuntarily committed to a Virginia hospital for a period of 180 days and discharged by the hospital about two-and-a­ half months later.  A circuit court judge that affirmed the individual's initial commitment subsequently held a number of hearings and entered various orders relating to the individual's involuntary commitment, including an order that the hospital had an obligation to care for the individual and to advise the local county department of human development if it chose to discharge the patient.  This order was entered over 10 months after the circuit court affirmed the commitment and over 11 months after the initial commitment order...

Found in DMHL Volume 24 Issue 1

Without Evidence of Specific Acts Demonstrating Actual or Likely Serious Bodily Injury, Discontinuation of Prescribed Medications Can Not Serve as Basis for Involuntary Hospitalization

In re B.T., 891 A.2d 1193 (N.H. 2006)

The New Hampshire Supreme Court reversed an order to involuntarily hospitalize a woman with a history of mental illness who had discontinued her prescribed medications. In 1999, a judge had ordered the woman involuntarily hospitalized after she overdosed on prescribed medications. The commitment was for a maximum of two years but she was conditionally discharged prior to the expiration of that period. In New Hampshire, an individual who has been involuntarily committed can spend the remainder of the period of commitment in the community if the individual agrees to comply with imposed conditions...

Found in DMHL Volume 25 Issue 2

Involuntary Psychiatric Hospitalization of Minor

Parents’ claim that doctors’ “medical hold” keeping child in hospital over their objection violated their right to familial association survives motion to dismiss.

Thomas v. Kaven, 765 F.3d 1183 (10th Cir. 2014)

Legina and Todd Thomas, parents of M.T., a twelve-year-old girl at the time of the events at issue in this case, placed M.T. in the University of New Mexico Children's Psychiatric Center after she revealed suicidal tendencies during a police investigation of a potential sexual assault. She was diagnosed as exhibiting several serious psychiatric problems and her doctors recommended a prescription of psychotropic drugs. The Thomases resisted both the diagnoses and the doctors’ recommendations. M.T. was evaluated for several weeks until Mrs. Thomas decided to remove her from the hospital. Concerned about her safety, M.T.'s doctors and therapist placed her on a medical hold and initiated an involuntary residential treatment petition in state court. After a seven-day hold, M.T. was released before the involuntary commitment proceedings began.

The Thomases claimed that when doctors and the hospital placed a medical hold on M.T. and filed a petition for involuntary residential treatment they violated (1) their constitutional right to direct M.T.'s medical care and (2) their right to familial association. The defendants moved to dismiss, asserting absolute and qualified immunity. The district court granted the motion on qualified immunity grounds, and the Thomases appealed. The Court of Appeals for the 10th Circuit affirmed the decision of the district court with regard to the alleged violation of the right to direct M.T.’s medical care. In regard to the violation of the right to familial association, however, the Court held that the Thomases had stated a claim eligible for relief and remanded the case for further proceedings. As the case had come up as an appeal of a motion to dismiss (not a motion for summary judgment), the decision was made on the basis of the pleadings alone, and the defendants could not “establish as a matter of law at this point in the proceedings that the relevant state interests outweighed the Thomases' interest in their right to familial association.”

Found in DMHL Volume 34 Issue 1

Involuntary commitment (Alabama)

Hospital mental health professionals have sovereign immunity protection for decision-making regarding discharge of involuntarily committed patients, provided that required procedures regarding such discharge are followed

Ex parte Kozlovski, No. 1140317, 2015 WL 1877656 (Ala. Apr. 24, 2015) (not yet released for publication)

Jeffrey Brown, a 19-year-old man with a long history of mental illness as well as chronic runaway behaviors and periodic violent outbursts, was involuntarily committed to an Alabama psychiatric hospital after physically attacking his father. After a course of treatment at the hospital, the treatment team, led by Dr. Kozlovski, found Mr. Brown met the criteria for discharge and return to the community, and arranged for his placement in a group home, against the wishes of family members who feared the consequences of his runaway behaviors. Within a day of his admission to the group home, Mr. Brown ran away from the group home. He was found dead three days later, apparently struck and killed by a motor vehicle. Mr. Brown’s estate filed a wrongful death action against the hospital and Dr. Kozlovski. After discovery, Dr. Kozlovski filed a motion for summary judgment based on “State agent immunity,” but the trial court denied the motion. Following that denial, Dr. Kozlovski appealed to the Supreme Court of Alabama and requested a writ of mandamus requiring the trial court to grant the summary judgment motion.

The Supreme Court of Alabama granted the writ, holding that the psychiatrist was discharging duties imposed by state statute, rules, and regulations, and so was entitled to state agent immunity. The Court also noted that, although the State agent asserting immunity bears the initial burden of demonstration that the plaintiff’s claims arise from actions that would normally entitle the agent to immunity, that burden shifts to the plaintiff to show that an exception to state-agent immunity is applicable.

Found in DMHL Volume 34 Issue 2

Involuntary outpatient commitment (Vermont)

For continuation of an outpatient treatment order, the statutory and constitutional burden on the state is to prove by clear and convincing evidence that failure to renew the order will result in the person posing a threat of harm to self or others in the near future; evidence of the individual’s repeated mental deterioration when off of medications is not sufficient alone In re

T.S.S., 2015 VT 55 (Vt. Apr. 10, 2015)

Respondent T.S.S., a person diagnosed with paranoid schizophrenia, had been involuntarily committed in 2003 due to severe delusions and extreme lack of self-care. He was released from the hospital in November 2003, but placed under an order of nonhospitalization (ONH) for continued outpatient treatment. That order was renewed annually for a period of years, but was not renewed in 2008. In 2012, T.S.S. was arrested for “unlawful mischief,” a misdemeanor, but was found incompetent to stand trial. That charge was dropped when T.S.S. agreed to an ONH that required his continuing outpatient treatment, including medication. T.S.S. did not contest renewal of that ONH in 2013, but he did object in 2014, and an evidentiary hearing was held.

At the evidentiary hearing, a doctor testified that T.S.S. had “demonstrated a clear pattern that…he, on orders of non-hospitalization, [would] take medications and improve significantly. But when he [was] off the order of non-hospitalization, he quickly [went] off medications and deteriorate[d].” Although the doctor testified that the deterioration was unavoidable—estimating that T.S.S. would deteriorate mentally within one year—he could not predict when T.S.S. would deteriorate to the point of posing a danger of harm to himself or others. The superior court granted the application for a continued ONH.

Vermont law allows continued ONHs for a person whose “capacity to exercise selfcontrol, judgment, or discretion in the conduct of his or her affairs and social relations is so lessened that he or she poses a danger of harm to himself, to herself, or to others” when it is shown “that in the near future his or her condition will deteriorate and he or she will become a person in need of treatment.” See 18 Vt. Stat. Ann. §§ 7101(16), (17). The Vermont superior court held that the phrase “near future” referenced “when the condition will deteriorate and not necessarily when the patient will become a person in need of treatment.” Thus, the State need only prove that a defendant’s “condition will deteriorate in the near future and this will inevitably lead to him” needing treatment.

On appeal, T.S.S. argued that the superior court had erred in its interpretation of the statute. The Supreme Court of Vermont agreed, holding that the proper determination was “whether T.S.S. [was] likely to pose a danger to himself [or others] in the near future.” Although it was “undisputed that T.S.S.'s care-providers sought a continued ONH because they…want to protect him from making a choice that would lead him, eventually, to become a danger to himself,” the Court emphasized that “the fact is, people who do not pose an imminent danger to themselves or others have a right to autonomy that includes the right to make decisions about the most personal of matters, even if those decisions are deemed by others to be profoundly ill-advised.” The Court also noted that basing a continued ONH on “a finding that the person is likely to become a person in need of treatment at some point in the future (however distant)” would “present serious constitutional concerns…That a person could or will ‘eventually’ become a person in need of treatment is, standing alone, a thin reed upon which to predicate a continued intrusion upon fundamental liberty.”

Because the “last specific evidence of T.S.S. actually posing a danger to himself” dated back “more than 10 years,” the Court found that the record was not sufficient to conclude that T.S.S. was likely to become a danger to himself or others in the near future.

Found in DMHL Volume 34 Issue 2


In re Dakota K., No. S-15428, 2015 WL 5061844 (Alaska Aug. 28, 2015)

Appeals challenging the sufficiency of the evidence in involuntary commitment cases are moot after the commitment period has passed; the respondent has the burden to establish factual basis for a finding of collateral consequences

Background: Dakota K. sought to appeal 30-day involuntary psychiatric commitment. Even though the appeal came after the passage of the entire commitment period, Dakota argued that the collateral consequences exception to the mootness doctrine applied as the Supreme Court of Alaska has presumed that collateral consequences will flow from a respondent's first involuntary commitment.

Holdings: The court held that the burden of proving a first involuntary commitment lay with the respondent, who must “make some evidentiary showing at least raising a genuine issue of material fact, that the commitment was a first involuntary commitment—or make an evidentiary showing attempting to establish some factual basis for a finding of collateral consequences.”

Found in DMHL Volume 34 Issue 3

Forced medication of involuntarily committed patients

Disability Rights New Jersey, Inc. v. Comm'r, New Jersey Dep't of Human Servs., No. 13-4255, 2015 WL 4620273 (3d Cir. Aug. 4, 2015)

State administrative procedure authorizing hospital medical panel review and approval of forced medication of patients in non-emergency situations does not violate ADA or constitutional rights of patients

Background: Plaintiffs brought action challenging New Jersey’s administrative policy for the forcible medication of involuntarily committed persons in state psychiatric hospitals in non-emergency situations. The plaintiffs alleged that the policy—which required in-hospital medical panel review, approval and oversight of all proposed involuntary medications, with various procedural requirements and the right to inhospital appeal and review—violated the Americans with Disabilities Act (ADA), Rehabilitation Act (RA), and the 14th Amendment, and asked that the Court require the state to establish a procedure for judicial review. The district court found that the state’s administrative policy was valid, except as to patients who had been found by a court to be ready for discharge and were in the hospital awaiting transfer to the community (“CEPP” patients). The district court granted summary judgment to the state in regard to all but the CEPP patients. Summary judgment was awarded to the plaintiffs in regard to the CEPP patients. Both the plaintiffs and the state appealed.

Holdings: A 3-judge panel of the Court of Appeals affirmed the district court’s ruling, “though not for all its stated reasons.” The panel, relying heavily on the U.S. Supreme Court’s decision in Washington v. Harper, 494 U.S. 210 (1990), found that New Jersey’s medically-based panel review process properly balanced the liberty interests of the nonCEPP patient with the state’s interests in both the safety of the hospital and the treatment and return to the community of the patient. Relying on Mathews v. Eldridge, 424 U.S. 319 (1976), however, the panel found the CEPP patients’ due process rights were violated by New Jersey’s policy.

Notable Points:

Due process analysis by the Court for non-CEPP patients: Noting that the U.S. Supreme Court had never addressed the constitutional right of involuntarily committed patients to refuse recommended medications for treatment, the panel adopted the balancing test applied to prisoners who refuse recommended psychotropic medications. The panel explained that, although convicted criminals in prisons do not have the same due process rights as persons held in non-criminal facilities, the U.S. Supreme Court’s treatment of forced medications in such cases makes clear that they can be justified only for non-punishment purposes; thus, application of Harper was not confined to prisoners. Because the New Jersey policy was essentially identical to the policy challenged in Harper, the panel found that it met all due process and related constitutional standards.

Due process analysis by the Court for CEPP patients: The panel specifically found that the standards in Harper could not be applied to CEPP patients, who had been “adjudicated by a court to be nondangerous.” The panel turned to the 3-pronged balancing test set out in Mathews v. Eldridge. 10 The panel noted that the administrative policy would permit forcible medication “even after a judge has ruled that the factual basis for their continued civil commitment has disappeared.” If a patient on CEPP status had so deteriorated that forcible medication of that patient had become necessary, the “appropriate course” for the state would be to recommit the patient.

Found in DMHL Volume 34 Issue 3

Unreasonable seizure of firearms

Arden v. McIntosh, et al. (No. 14-1517) (10th Cir. July 23, 2015)

Deputy’s warrantless seizure of firearms from the home of a person after the person had been removed from the home and hospitalized for suicidal behavior constitutes unreasonable seizure under 4 th amendment, but deputy entitled to qualified immunity

Background: Sheriff’s deputies were dispatched to Arden’s home after a caller reported to emergency staff that Arden had called her and in slurred speech had stated that he was taking pills and would continue taking them because nobody cared about him. Deputies found the front door to Arden’s home open. Officers announced their presence, found Mr. Arden in his bedroom, incoherent and unresponsive. Medics soon arrived and took Mr. Arden to the hospital, where he was placed on an “emergency mental health hold.” While still at the home, a deputy saw 23 firearms and ammunition in plain sight; these were collected and held for safekeeping at the police station. After Mr. Arden was released from the hospital, the firearms and ammunition were returned to him.

Mr. Arden filed suit in state court alleging a 4 th amendment violation and that the Sheriff failed to provide proper policies, training, and supervision in regard to such activities. The defendants removed the case to federal court, and moved for summary judgment, claiming they were entitled to “qualified immunity” for their actions. The district court granted the motion, finding no constitutional violations in the deputies’ conduct. Mr. Arden appealed, arguing that once he was taken from his home to the hospital, exigency ended, so that the subsequent warrantless search and seizure were not justified. The deputy argued that, because she was already authorized to be in the home and the weapons were in plain sight and her seizure was temporary and carried out for public safety purposes, her actions were authorized by law enforcement’s “community caretaking” role.

Holdings: A 3-judge panel of the Circuit Court ruled that the exigency was removed when Arden was removed from the home to the hospital, so that there was no cited legal authority for removing the firearms from the home. As a result, the firearms seizure constituted an unlawful seizure under the 4 th amendment. However, at the time of that seizure, there was no existing case law that gave the deputy “fair warning” that this conduct was unreasonable. Accordingly, the deputy was protected by “qualified immunity” from liability because she could have a good faith belief that her conduct was lawful.

Notable Points: The panel noted that no authority could be found “authorizing a police officer to confiscate weapons that would otherwise be left in an unoccupied house,” but also that no authority clearly established “that firearms may not constitutionally be removed from a residence under these circumstances.”

Found in DMHL Volume 34 Issue 3

Due process requirements for involuntary hospitalization

J.R. v. Hansen, 803 F.3d 1315 (11th Cir. 2015)

Florida’s statutory structure for involuntary commitment of persons with intellectual disability violates the 14th amendment, as it allows for indefinite commitment without periodic review

Background: Plaintiff-Appellant J.R., an intellectually disabled man with an IQ of 56, was charged with sexual battery and, after being found incompetent to stand trial, was admitted to non-secure residential services under F.S.A. § 393.11. He claimed that Florida’s involuntary commitment laws denied due process because they permitted the State to keep intellectually disabled people committed indefinitely without periodic review. When a person is admitted, the circuit court that first ordered the admission keeps jurisdiction over the order, and the person “may not be released except by order of the court.” The court, however, is “never required to review a continuing involuntary admission” (emphasis in original). Admitted persons may only challenge their support plans in administrative proceedings, but administrators cannot change or vacate the admission order or require release. Thus, the only means of securing release was by writ of habeas corpus.

Holding: The Eleventh Circuit held that Florida’s statutory scheme was facially unconstitutional because it violated the Due Process Clause of the Fourteenth Amendment by failing to require periodic review of continued commitments “by a decision-maker with the duty to consider and the authority to order release.” Even if the statutory scheme did require administrative agencies to conduct period reviews, however, it would still be facially unconstitutional because the agency did not have the authority to order release nor was it required to petition the circuit court.

Notable Points:

The availability of habeas corpus does not provide constitutionally adequate process: The Eleventh Circuit, relying on Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984), stated that “habeas corpus is not adequate in and of itself” and “can be at most a backstop.” The Court distinguished habeas from periodic review because habeas is only available if a petitioner seeks it.

Found in Found in DMHL Volume 34, Issue 4

Liability of Public Entities in Caring for Persons during Involuntary Commitment Process

Anderson v. Marshall Cty., Miss., No. 15-60051, 2016 WL 143303 (5th Cir. Jan. 12, 2016) (per curiam)

Estate of mentally ill person, who was taken into involuntary custody due to mental health crisis and later died in County Sheriff Department’s custody, failed to meet requirements for claims against hospital and County under 42 USC § 1983, as evidence did not demonstrate that defendants had a policy or practice amounting to deliberate indifference, as required under Monell. 

Background: After Princess Anderson arrived at a hospital in Marshall County Mississippi, she became increasingly agitated and physical with emergency room staff. Anderson tested positive for marijuana and opiates, and was diagnosed with acute psychosis. After a mental health evaluation, it was determined that Anderson required psychological care, but she refused voluntary admission. The chancery court granted the doctors’ request to have Anderson involuntarily committed and ordered the DeSoto County sheriff to take custody of her. Because Anderson was a resident of Marshall County, she was transported from DeSoto to Marshall County jail on Tuesday, February 8th. On arrival, DeSoto deputies told the Marshall County jail officer that Anderson had become agitated during the transport requiring that she be restrained. The Marshall jail officer did not review Anderson’s medical records (believing she was not entitled to view Anderson’s health information), and Anderson was placed in a cell. Although other inmates reported that Anderson needed emergency medical attention, she was not taken to a hospital until Friday, February 11th when Anderson’s mother arrived at the jail to take her to a hospital for follow-up tests. Shortly after arriving there, Anderson died of multisystem organ failure. Her mother, Angela Anderson, sued Marshall County and the Sheriff for violations of Princess Anderson’s rights under 42 U.S.C. § 1983. The district court determined that there was no § 1983 violation.

Holding: The Fifth Circuit held per curiam that Angela Anderson did not meet “the high bar required for Monell liability” under § 1983 and upheld the district court’s grant of summary judgment against her. On the failure to train claim, the Court held that the plaintiff failed to establish that Marshall County acted with deliberate indifference to the constitutional rights of inmates when adopting its training procedures. The Court also found the single incident exception to Monell’s general requirement of a pattern of unconstitutional conduct was not applicable given the evidence presented by the plaintiff.

Notable Points:

Plaintiff did not show evidence of a pattern of deliberate indifference: Anderson came forward with no evidence to show or allege a pattern of deliberate indifference to the constitutional rights of prisoners in Marshall County’s training, policies, or procedures. Without evidence of a pattern, Marshall County could not be found to have been on notice that its current training was producing unconstitutional results. Absent a pattern, the plaintiff must show deliberate indifference through the single incident exception.

Plaintiff’s evidence was not sufficient to meet § 1983’s single incident exception: The single incident exception would require that Marshall County’s training be so inadequate that the county was on notice that an untrained officer would have neglected a prisoner in the way Marshall jail officer was alleged to have done. The Fifth Circuit reiterated that “it is not enough to say that more or different training or supervision would have prevented Princess’s injuries.” It is almost always the case that more or better training could have prevented a poor outcome, so that cannot be enough to subject a county to governmental liability. Specifically, the Court said that, given the training provided, Marshall County “could not have anticipated that Officer Anderson and other correctional officers would ignore Princess’s litany of obvious ailments.”

Found in Found in DMHL Volume 35, Issue 1